Dismissed

Sabira Hussain v. District Collector

Kerala HC10 Jan 2020WA/1259/2012

Case brief

AI extract

What is this about?

In an intra-court appeal, the Kerala High Court dismissed the writ appeal filed by the wife of the vehicle owner. Upholding the Single Judge's decision, the court held that despite the insurance company's deposit, the appellant remained liable to pay the balance amount along with statutory interest until full recovery.

What did the court decide?

Writ appeal failed and was dismissed; appellant directed to deposit amount with 7% interest until full payment.

Sabira Hussain Vs District Collector — Motor Accident Claims | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 10TH DAY OF JANUARY 2020 / 20TH POUSHA, 1941

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WA.No.1259 OF 2012

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AGAINST THE JUDGMENT IN WPC 5804/2009 DATED 17-02-2012 OF HIGH COURT OF KERALA

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APPELLANT/PETITIONER:

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SABIRA HUSAIN AGED 29 YEARS

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W/O.HUSSAIN, PADIKAYIL HOUSE, ANDATHODU P.O., PUNAYOORKULAM.

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BY ADV. SRI.RAJIT

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RESPONDENT/RESPONDENTS AND 3RD PARTY:

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1 DISTRICT COLLECTOR

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THRISSUR COLLECTORATE, AYYANTHOLE, THRISSUR.

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2 TAHSILDAR

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TALUK OFFICE, CHAVAKKAD, THRISSUR DISTRICT.

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ADDL. THE NEW INDIA ASSURANCE CO.LTD. R3 KUNNAMKULAM, THRISSUR DISTRICT.

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ADDITIONAL R3 IS IMPLEADED AS PER ORDER DATED 6.7.15 IN I.A. NO.528/12

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R3 BY ADV. SRI.LAL GEORGE R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI.TEK CHAND

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA.No.1259 OF 2012

JUDGMENT

SHAJI P.CHALY, J.

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This appeal is filed by the petitioner in W.P.(C) No.5804/2009 challenging the judgment of the learned Single Judge dated 17.2.2009. The case put forth by the appellant is that, by virtue of the award passed by the Motor Accident Claims Tribunal in O.P.2370/2001 dated 8.3.2006, appellant's husband i.e., the 1^st respondent is liable to pay interest only up to the amounts deposited by the Insurance Company and thereafter he is not liable to pay any amount towards interest. However, as per the revenue recovery notice issued, evident from Ext.P2, a demand is raised to pay the amount with interest at the rate of 7% till such time the entire amount is recovered.

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The learned Single Judge after evaluating the contentions put forth by the appellant has found that, the contentions so put forth by the appellant cannot be sustained in view of the proposition of law laid down by the Apex Court in National Insurance Company Limited v. Swaran Singh [AIR 2004 SC 1531], wherein it was held that the amount can be recovered by a certificate issued under section 174 of the Motor Vehicles Act, 1988 as an arrear of land revenue; provided the insured does not pay the amount awarded in favour of the insurer within 30 days. Therefore, it was held that, the Insurance Company is entitled to claim the interest over the period during

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WA.No.1259 OF 2012

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which recovery proceedings were initiated against owner of the vehicle also, since it was not their liability. So also it was held that, as laid down by the Apex Court in Oriental Insurance Company Limited v.Zaharulnisha [AIR 2008 Supreme Court 228], the insured has the right to recover the amount deposited along with the interest. Therefore, it was held that, the appellant is liable to pay the future interest liability also. It was accordingly that the writ petition was dismissed.

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Even though the Insurance Company was not a party in the writ petition, in the appeal, the Insurance Company was impleaded as additional 2nd respondent. It is submitted by learned counsel for Insurance Company that, an amount of Rs.3,55,204/- was deposited before the Tribunal in accordance with the directions contained in the award towards the principal sum of Rs.2,59,000/- with 7% interest from 26.9.2001 as per cheques drawn in favour of the claimants dated 1.8.2006. As per the award, company was permitted to recover the amount from the owner and driver of the vehicle since the driver of the vehicle did not have any licence. Therefore, after the deposit, execution petition was filed on 26.10.2010 claiming a sum of Rs.3,56,043/-towards principal amount, accrued interest and proportionate costs already paid for satisfying the award. The Tribunal directed the District Collector to take steps to recover the amount and it was accordingly that the demand notice was issued. It is also submitted that, the appellant has

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WA.No.1259 OF 2012

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deposited the amounts towards the award totalling to Rs.2,60,000/-. Therefore, according to the learned counsel for additional 2nd respondent,

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the Insurance Company is entitled to recover the balance amount by proceeding against the property of the appellant's husband.

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We have heard learned counsel for appellant, learned Government Pleader as well as learned Standing Counsel appearing for the 2nd respondent.

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The sole question remains to be considered is, whether any interference is warranted to the judgment of the learned Single Judge ? The discussion of facts made above would make it clear that, the learned Single Judge has turned down the contentions put forth by the appellant taking into account the proposition of law laid down by the Apex Court in the aforequoted judgements, and held that, the Insurance Company is entitled to recover the amount deposited with future interest from the date of deposit. Even though learned counsel for the appellant has a case that, since in the award recovery of future interest is not ordered, we are of the considered opinion that the award was passed to pay the award amount with 7% interest per annum from 26.9.2001 till the date of actual payment by the Insurance Company, with proportionate costs, within 30 days of the award. The Insurance Company in accordance with the directions has deposited the amount and

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WA.No.1259 OF 2012

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thereafter proceeded by filing execution petition and it was accordingly that recovery action was initiated as per Section 174 of the Motor Vehicles Act, 1988.

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In our considered opinion, it is clear from the award passed by the Tribunal that, after the deposit of amount by the Insurance Company, they are entitled to recover the amount from the 1st respondent i.e., the owner of the vehicle. Which thus means, the Insurance Company is entitled to get the interest up to the date of payment of the entire amount by the owner of the vehicle. It is to be borne in mind that, though the insurance company was not liable to pay the amount consequent to the violation of the contract conditions, directions was issued by the Tribunal to ensure speedy and time bound receipt of money by the claimants. Therefore, the court considering an issue like this has to logically appreciate the issue as if the payment was to be made by the owner of the motor vehicle and in that situation his liability to remit the amount with interest is up to the date of final deposit. Moreover, insurance company is a public limited company and on the basis of the convenience employed by the Tribunal, it shall not suffer on account of the deposit of the amount and the consequential delay to recover the amount from the owner of the vehicle.

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That apart, as per section 174 of the Motor Vehicles Act, 1988, recovery is to be effected as though it is an arrear of land revenue. Arrear of public revenue due on land defined under section 2(a) of the Kerala Revenue Recovery Act, 1968 is as follows:

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“Arrear of public revenue due on land means the whole or any portion of any kist or instalment of such revenue not paid on the day on which it falls due according to the kistbandy or any engagement or usage.”

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Therefore, it is clear that, by virtue of the contract entered into by and between the owner of the vehicle and the insurance company, the provisions of the Revenue Recovery Act will come into play in the matter of recovery of the amount due. So much so, section 6 of Act, 1968 deals with interest on arrears of public revenue due on land, which read thus;

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“Arrears of public revenue due on land shall bear interest at the rate of 12 per cent per annum or at such other rate as may be notified by the Government from time to time in the Gazette.”

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Therefore, when a revenue recovery action is initiated to recover the

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arrears of public revenue due on land, interest can be recovered by virtue of the said statutory provision. However, so far as the percentage of interest is concerned, Tribunal has allowed only 7% interest. Therefore, when the Tribunal issued certificate as per section 174 of the Act, 1988, the recovery authority is entitled to recover the interest as is ordered by the Tribunal. In

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that view of the matter, we have no hesitation to hold that, the appellant is liable to deposit the amount with 7% interest as directed by the Tribunal till

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the entire amounts are paid.

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Evaluating the situation so, we are of the considered opinion that,

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appellant has not made out any case so as to interfere with the discretion exercised by the learned Single Judge in the intra court appeal filed under section 5 of the Kerala High Court Act.

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Resultantly, writ appeal fails, accordingly it is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY